SHIVRAJversusRAJENDRA & ANR.

                         [2018] 10 S.C.R. 649                           649


                             SHIVRAJ                                    A
                                 v.
                       RAJENDRA & ANR.
               (Civil Appeal Nos. 8278-8279 of 2018)
                      SEPTEMBER 05, 2018                                B
     [DIPAK MISRA, CJI AND A.M. KHANWILKAR, J.]
      Motor Vehicles Act, 1988 – s.166 – Compensation –
Appellant was travelling in a tractor when the driver of the tractor
driving in a rash and negligent manner dashed the tractor against
                                                                        C
a big mud stone, consequent to which appellant sustained grievous
injuries – Claim petition u/s.166 – Tribunal held that claim of
appellant was covered by the insurance policy and awarded
compensation of Rs.9,02,324/- payable jointly by the owner of the
vehicle and the respondent no.2-insurer – However, High Court
held that appellant travelling in tractor was in breach of insurance    D
policy and absolved the insurer from the liability to pay
compensation – On appeal, held: High Court rightly found in favour
of insurer that the appellant travelled in the tractor as a passenger
which was in breach of the policy condition, for the tractor was
insured for agriculture purposes and not for carrying goods –
                                                                        E
Appellant travelled in the tractor as a passenger, even though the
tractor could accommodate only one person namely the driver –
Resultantly, insurer was not liable for the loss or injuries suffered
by the appellant or to indemnify the owner of the tractor –
However, in view of the consistent view taken by the Supreme Court
in various judgments, insurer directed to pay the compensation          F
amount determined by the Tribunal and affirmed by the High Court
to the appellant with liberty to recover the same from the tractor
owner.
      Disposing of the appeals, the Court
      HELD: 1. The High Court rightly found in favour of                G
respondent No.2 (insurer) that the appellant travelled in the
tractor as a passenger which was in breach of the policy condition,
for the tractor was insured for agriculture purposes and not for
carrying goods. The evidence on record unambiguously pointed
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                                 649
650            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A     out that neither the trailer was insured nor any trailer was attached
      to the tractor. Thus, the appellant travelled in the tractor as a
      passenger, even though the tractor could accommodate only one
      person namely the driver. As a result, the respondent No.2
      (insurer) was not liable for the loss or injuries suffered by the
      appellant or to indemnify the owner of the tractor. That conclusion
B
      reached by the High Court is unexceptionable in the fact situation
      of the instant case. However, in the facts of the instant case, the
      High Court ought to have directed the Insurance Company to
      pay the compensation amount to the claimant (appellant) with
      liberty to recover the same from the tractor owner, in view of the
C     consistent view taken in that regard by this Court.
      [Paras 9 and 10] [654-A-D]
            National Insurance Co. Ltd. v. Swarna Singh & Ors.
            (2004) 3 SCC 297 : [2004] 1 SCR 180 ; Mangla
            Ram v. Oriental Insurance Co. Ltd. (2018) 5 SCC
D           656 ; Rani & Ors. v. National Insurance Co. Ltd. &
            Ors. 2018 (9) SCALE 310 ; Manuara Khatun and
            Others v. Rajesh Kumar Singh And Others. (2017) 4
            SCC 796 – referred to.
            2. As regards, the determination of compensation amount
E     by the tribunal and as affirmed by the High Court, the tribunal
      had taken into account all the relevant aspects and provided for
      just and proper compensation amount for different heads as are
      permissible. The High Court, therefore, was justified in not
      disturbing the said conclusion of the tribunal. The view so taken
      by the High Court affirmed. [Para 11] [654-F-G]
F
                             Case Law Reference
      [2004] 1 SCR 180               referred to             Para 10
      (2018) 5 SCC 656               referred to             Para 10
      2018 (9) SCALE 310             referred to             Para 10
G
      (2017) 4 SCC 796               referred to             Para 10


            CIVIL APPELLATE JURISDICTION : Civil Appeal
      Nos. 8278-8279 of 2018.
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                 SHIVRAJ v. RAJENDRA & ANR.                                  651


      From the Judgment and Order dated 13.08.2015 of the High Court         A
of Karnataka at Bengaluru in MFA No. 7662 of 2013 (MV) C/w MFA
No. 9995 of 2013 (MV).
     Ms. Kanika, Mrs. S. Usha Reddy, Ashwin V. K., Ms. Rekha
Chandra Sekhar, H. Chandra Sekhar, Advs. for the appearing parties.
      The Judgment of the Court was delivered by                             B

       A. M. KHANWILKAR, J. 1. These appeals are directed
against the common judgment and order passed by the High Court of
Karnataka at Bengaluru dated 13th August, 2015 in M.F.A. No.7662 of
2013 (MV) and M.F.A. No.9995 of 2013 (MV) whereby the High Court
allowed the appeal preferred by respondent No.2 (insurer) and dismissed      C
the appeal for enhancement of compensation preferred by the appellant
(injured claimant).
       2. Briefly stated, on 23rd February, 2010 at about 8:30 a.m., the
appellant was travelling in a tractor bearing Registration No.KA-15-T-
2011 as a Coolie, on Bangalore Road, Survey No.266, Bangalore. The           D
driver of the tractor was driving at a high speed, in a rash and negligent
manner and dashed the tractor against a big mud stone, resulting in the
tractor turning turtle and the appellant suffering grievous injuries. The
appellant was immediately taken to North Side Hospital and Diagnostic
Center, Bangalore, where he underwent medical treatment as an                E
inpatient, from 23rd February, 2010 to 27th February, 2010. Later on, he
was shifted to Bowring and Lady Curzon Hospital, Bangalore, as an
inpatient from 27th February, 2010 to 7th May, 2010 and underwent 4
(four) different surgeries. According to the appellant, despite receiving
best medical treatment, he suffered permanent physical disability to an
extent of 59.4% both lower limbs, 18.9% towards Vertebra, Clavicle           F
and Scapula and 80% towards urethral injury, which is about 67% to the
whole body. The appellant was only 25 years of age at the time of the
accident and was working as a coolie. On account of his permanent
disability, the appellant has become incapable of working as a coolie and
is thus denied of his income to the extent of Rs.6,000/- per month.          G
       3. Resultantly, a claim petition was filed by the appellant before
the III Additional Senior Civil Judge, Member, MACT, Bangalore,
bearing M.V.C. No.3533/2010, under Section 166 of the Motor Vehicles
Act, 1988, claiming compensation of Rs.15,00,000/- (Rupees Fifteen
Lakh Only) for the injuries sustained by him in the accident.                H
652            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           4. The appellant examined 4 witnesses in support of his claim
      and also produced Exhs. P1 to P24. The respondent examined RW1
      Sagayaraj, Administrative Officer and produced Exhs. R1 and R2.
      After analysing the evidence produced by the parties, the tribunal
      proceeded to answer the three issues framed by it on the basis of the
      pleadings.
B
             5. The tribunal held that the claimant was able to prove the facts
      that the accident occurred on 23rd February, 2010 at 8:30 a.m. while he
      was going in the stated tractor, due to rash and negligent driving of the
      driver of the tractor. The tribunal held that the appellant was travelling
      as a loader in the tractor and not as a gratuitous passenger. After
C     adverting to the Insurance Policy, the tribunal noticed that the same
      covered risk of 1+4. The tribunal held that the respondent No.2 admitted
      issuance of the Insurance Policy to the offending vehicle and its validity
      as on the date of the accident. The tribunal then proceeded to quantify
      the compensation amount on the notional income of the appellant at
D     Rs.150/- per day as a coolie and, keeping in mind the age of the
      appellant at the relevant time i.e. 25 years, applied multiplier of 18. The
      tribunal adjudged the permanent disability of the appellant to the extent
      of 60% to the whole body and on that basis, computed the loss of future
      income of the appellant at Rs.5,83,000/-(Rupees Five Lakh Eighty Three
      Thousand Only). The tribunal arrived at the following calculation to be
E     awarded as compensation to the appellant payable jointly by the owner
      of the vehicle and the insurer, along with interest at the rate of 8% per
      annum from the date of petition till the date of realization. The
      computation of compensation amount towards different heads arrived
      at by the tribunal is as follows:
F                      Compensation Heads                    Compensation
                                                                 amount
           1. Pain and agony                                Rs. 85,000/ -
           2. Medical expenses                              Rs.1,42,324/ -
           3. Future medical expenses                       Rs. 50,000/-
           4. Loss of income during lai d up peri od        Rs. 12,000/-
G
           5. Rest, Nourishment and attendant Rs. 5,000/ -
           charges
           6. Loss of future income                         Rs.5,83,000/-
           7. Conveyance                                    Rs. 5,000/-
           8. Loss of amenities & discomfort in life        Rs. 20,000/ -
H                                Total                      Rs.9,02,324/ -
                 SHIVRAJ v. RAJENDRA & ANR.                                   653
                    [A. M. KHANWILKAR, J.]

        6. Feeling aggrieved by the said award, respondent No.2 (insurer)     A
preferred an appeal being M.F.A. No.7662 of 2013 (MV) and the
appellant preferred a separate appeal being M.F.A. No.9995 of 2013
(MV) for enhancement of the compensation amount. The High Court
disposed of both these appeals by the impugned common judgment and
order. The High Court broadly agreed with all other findings given by
                                                                              B
the tribunal but held that going by the stand taken by the appellant
throughout the proceeding and the contemporaneous documents Exhs.
P2 to P5, nowhere was it mentioned that the appellant was travelling in
a trailer attached to the tractor. The evidence, however, is unambiguous
that the appellant travelled in the tractor which was insured only for
agriculture purposes and not for carrying goods. No additional insurance      C
was taken in respect of the trailer rather presence of trailer is not shown
or demonstrated in any of the documents and there was no evidence to
demonstrate that the tractor was attached to a trailer. The tractor could
accommodate only one person namely the driver of the tractor and none
else.
                                                                              D
       7. On that finding, the High Court concluded that the appellant
travelled in the tractor in breach of policy terms and conditions and
therefore, the Insurance Company cannot be made liable to compensate
the owner or the claimant. Accordingly, the appeal preferred by the
respondent No.2 was allowed by the High Court and the insurer came
to be absolved from the liability to pay compensation. While dealing with     E
the appeal for enhancement of the compensation amount filed by the
appellant, the High Court noted that the amount arrived at by the tribunal
was just and proper and reckoned all the mandatory heads of
compensation. As a result, it concluded that the appellant was not
entitled for enhanced compensation.                                           F
       8. The appellant has assailed the said common judgment and
order of the High Court by these appeals. We have heard Ms. Kanika
for the appellant and Ms. Rekha Chandra Sekhar for the respondent
No.2 (insurer). Both the courts have accepted the case of the appellant
that the motor accident occurred on 23rd February, 2010 at about              G
8:30 a.m. in which the appellant suffered grievous injuries due to the
rash and negligent driving of the driver of tractor. Further, both courts
have determined permanent disability of 60% to the whole body
suffered by the appellant in the accident.

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654             SUPREME COURT REPORTS                        [2018] 10 S.C.R.


A            9. The High Court, however, found in favour of respondent No.2
      (insurer) that the appellant travelled in the tractor as a passenger which
      was in breach of the policy condition, for the tractor was insured for
      agriculture purposes and not for carrying goods. The evidence on record
      unambiguously pointed out that neither was any trailer insured nor was
      any trailer attached to the tractor. Thus, it would follow that the
B
      appellant travelled in the tractor as a passenger, even though the tractor
      could accommodate only one person namely the driver. As a result, the
      Insurance Company (respondent No.2) was not liable for the loss or
      injuries suffered by the appellant or to indemnify the owner of the
      tractor. That conclusion reached by the High Court, in our opinion, is
C     unexceptionable in the fact situation of the present case.
             10. At the same time, however, in the facts of the present case
      the High Court ought to have directed the Insurance Company to pay
      the compensation amount to the claimant (appellant) with liberty to
      recover the same from the tractor owner, in view of the consistent view
D     taken in that regard by this Court in National Insurance Co. Ltd. Vs.
      Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co.
      Ltd.2, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.3 and
      including Manuara Khatun and Others Vs. Rajesh Kumar Singh And
      Others.4 In other words, the High Court should have partly allowed the
      appeal preferred by the respondent No.2. The appellant may, therefore,
E     succeed in getting relief of direction to respondent No.2 Insurance
      Company to pay the compensation amount to the appellant with liberty
      to recover the same from the tractor owner (respondent No.1).
             11. Reverting to the issue regarding the determination of
      compensation amount by the tribunal and as affirmed by the High Court,
F     we find that the tribunal had taken into account all the relevant aspects
      and provided for just and proper compensation amount for different heads
      as are permissible. The High Court, therefore, was justified in not
      disturbing the said conclusion of the tribunal. We affirm the view so
      taken by the High Court. Accordingly, the appeal preferred by the
G     appellant for enhancement of compensation amount does not warrant
      interference.
      1
        (2004) 3 SCC 297
      2
        (2018) 5 SCC 656
      3
        2018 (9) SCALE 310
      4
        (2017) 4 SCC 796
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                 SHIVRAJ v. RAJENDRA & ANR.                                    655
                    [A. M. KHANWILKAR, J.]

       12. We may place on record that the appellant did make an               A
unsuccessful attempt to persuade us to take a view that the permanent
disability should be reckoned as 67% to the whole body. However, after
going through the evidence of the doctor who had treated the appellant
and the medical records, we find that the assessment made by the
tribunal about the extent of permanent disability at 60% to the whole
                                                                               B
body seems to be a possible view. We are not inclined to disturb the said
finding and also because it has been justly affirmed by the High Court,
being concurrent finding of fact. Accordingly, the claim of the appellant
for enhancement of compensation amount does not merit interference.
       13. In view of the above, the appeals are partly allowed to the
extent of directing the respondent No.2 (Oriental Insurance Company            C
Ltd.) to pay the compensation amount determined by the tribunal and
affirmed by the High Court to the appellant in the first place and with
liberty to recover the same from the owner of the offending tractor
(respondent No.1) in accordance with law.
      14. The appeals are disposed of in the aforementioned terms with         D
no order as to costs.


Ankit Gyan                                              Appeals disposed of.

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